International arbitration almost inevitably brings into contact - if not collision- the different styles, habits, customs and practices that counsel and arbitrators of diverse backgrounds bring to proceedings. It is surely the course of wisdom that those differences be made patent rather than be left in the twilight of rumour and anecdote. In that context, I assume, I have been asked to describe, in practical terms, how American lawyers prepare witnesses to testify.

Although the literature on this subject is neither extensive nor markedly analytic, the practices I shall describe are long-standing and well established. That the business of preparing witnesses comes down to us from earlier times is reflected in the fact that it is commonly known as horses-hedding1 - an allusion to the modest structure behind the rural courthouse where once counsel found it convenient to confer with witnesses before calling them to testify.

I recognize that what is normal and expected in the United States is viewed with grave suspicion and, indeed, at least in the realm of judicial proceedings, prohibited in much of Europe2. So let me make full disclosure at the outset: in the world in which I have practised law the failure of counsel adequately to prepare the witnesses both for direct and for cross-examination would be regarded as a serious dereliction of professional duty3.

How it is that two such different approaches have developed is beyond my assignment and my capacity to explain, but I have no doubt that the American practice is to be understood only in the larger context of the style and character of our adversarial approach to the proof of contested facts. It is not too great[Page55:] a simplification to say that an evidentiary hearing in the United States is a specialized type of drama in which opposing parties attempt to present their story to the finder of fact through the questioning and cross-questioning of witnesses. The burden of making that process work - that is, of getting a coherent, credible and persuasive account presented through the questioning of witnesses - falls almost entirely on counsel. Each lawyer is the director of a little play. He must choreograph the entrances and exits of the players and elicit their answers in an order that results in an account of some past events that is coherent, comprehensible, persuasive, and, if possible, interesting to the finder of fact. In such a theatrical production, documents and other tangible evidence may be important, even indispensable, props - like smoking guns or bloodstained daggers - but the organizing narrative is provided by oral testimony. On this stage the lawyer cannot do his job without knowing what the witnesses he calls will say and, so far as possible, what will be said by each of his adversary's witnesses. Likewise, the witnesses cannot do their job without a good idea of what will be asked of them by counsel.

How then does the lawyer proceed? The answer, so far as I am aware, does not depend significantly on the type of tribunal before which the witness is to appear, and I will not distinguish between arbitration and litigation here. The lawyer's conversations with the potential witnesses will begin long before they are identified as witnesses. Counsel for claimant will of necessity have interviewed many of the individuals who may have knowledge bearing on the client's claim even before the first pleading is drafted. Indeed, under our Federal Rules of Civil Procedure, counsel's signature on a pleading constitutes his certification that, to the best of his knowledge, information and belief, "formed after an inquiry reasonable under the circumstances", the claims asserted are not only "warranted" as a matter of law, but are based on factual contentions that have "evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery" 4. The violation of that rule is grounds for the imposition of sanctions on counsel, and substantial fines have in fact been imposed.

So counsel will inevitably interview as many people as he can get access to. He will review his client's relevant files and then go back again to the individuals so as to be sure that he understands the strengths and weaknesses of the case. He will talk to non-party witnesses. He will probably not talk to officers[Page56:] or other employees of the adverse party for obvious reasons including the prohibition on communicating directly with someone represented by counsel without the consent of such other lawyer5.

As this exploratory process proceeds, the lawyer will begin to make judgements as to the utility or inutility of the cast of characters before him. Who knows the key facts? Who can testify to them with the greatest clarity and persuasive effect? Who becomes inarticulate or stutters under stress? Who is untrustworthy or comes across as untrustworthy? Who will be available at the likely time of trial? From all these and other considerations, the lawyer will select his witnesses and then begin the serious work of preparing them to testify.

Four things need to be achieved in this process:

First, the witness must be put at ease and made to feel comfortable with the task at hand.

Second, the witness must be given an understanding of the process in which he is to participate and how his part of the story fits into the overall picture.

Third, the witness must be intimately engaged in a dialogue that results in an outline of the questions and answers that will comprise his direct testimony.

Fourth, the witness must be prepared in detail, so far as humanly possible, for every difficulty that he will face on cross-examination.

Most people approach virtually any public performance with apprehension and the prospect of giving testimony with dread. If the witness is to do an effective job in presenting his evidence to the finder of fact, he must be made to feel that he can cope with the task, that he is in good hands, and that no harm will come to him. The lawyer tries to give the witness every assurance that he will be prepared for the ordeal ahead and that the lawyer will keep him out of trouble.

If it does not already exist, the lawyer will, if possible, establish an attorney-client relationship with the witness, thereby permitting the witness to pour out his heart in confidence to the lawyer and permitting the lawyer to give privileged advice to the witness. Where there is a real potential for divergence in the interests of the witness and the interests of the party calling him (as may be the case, for example, where the witness is a director of a corporation[Page57:] and the lawyer represents the corporate entity), the lawyer may well have an obligation to advise the witness to consult with his own counsel6 who may wish to attend and participate in the preparatory sessions.

In all events, the witness is told about the physical arrangements of the forum in which he will testify, who the other players in the drama are, and the mechanics of giving testimony. Further, he must be advised that he will be under oath and that false testimony will subject him to the possibility of prosecution for perjury. It can not be emphasized enough that nothing will destroy the witness's confidence in counsel faster, nothing will destroy his utility as a witness more thoroughly, and nothing is more counter-productive than the slightest suggestion to the witness that he is being called upon to give false testimony. Perhaps it is a sign of our cynical times, but some witnesses show up assuming that that is what they are going to be asked to do. They must be disabused of that idea. They must be told that nothing can do more harm to the case. They must be encouraged to believe that the lawyer is capable of coping with any true fact, but that deception will be detected and that being detected will destroy the credibility of the witness and very likely the cause.

Having established the appropriate environment for serious discussion, the lawyer will want to be sure the witness has a good idea of the nature of the case and how his testimony fits into the larger picture. It is often appropriate to give the witness a copy of the pleadings, or the terms of reference, or some early decision by the tribunal, any of which may serve, in an even-handed way, to identify the issues. It is not useful to give the witness a highly one-sided account, either orally or in writing, of the controversy. The witness really needs to understand what both sides are saying and what is, therefore, in dispute. Further, the witness may well be cross-examined about whatever documents were shown him7 and, if all he saw was a highly partisan account, it will not enhance his credibility with the finder of fact.

Having established the big picture, the lawyer and witness need to walk through the facts that the witness is going to testify about. If his narrative will be helped by documents, he needs to be shown them and asked to read them carefully. If diagrams, pictures, tables or the like are going to be helpful, they must be reviewed by him at this time. If his memory needs to be refreshed, he must review whatever will remind him of something he has forgotten or is uncertain about. [Page58:]

This is a slow process. If the testimony is complicated or lengthy, it is likely to take more than one session. As it goes along, the lawyer is developing his line of questions and the witness is developing facility in responding to them. Collectively, they are identifying the best examples to be used, the points that need to be presented at length, those than can be abbreviated, and those that are too complicated to be worth making. The lawyer may also give advice on order, pace, style and even the choice of words that will make the witness's point particularly clear or avoid ambiguity8.

This sort of detailed preparation is particularly important insofar as the rules preclude the use of leading questions on direct examination9. As one treatise correctly asserts:

"Thorough preparation of the witness stands as an essential element of avoiding the leading question. Before he takes the stand, the witness should know what each of your questions is aimed at. If you and he have gone over every step of his testimony, questions such as 'what happened next?' 'What if anything did you do then?' will not puzzle him." 10

It may be suggested that all of this labour of both witness and counsel can be minimized by the use of witness statements in lieu of direct examination. Perhaps it is easier for the lawyer simply to sit down and draft what he hopes the witness will say, have the witness look it over, and then submit it. I think in reality, however, testimony written out in advance, while convenient for the tribunal, requires special pains by counsel and the witness if the witness is going to be able to survive cross-examination. Whether one uses written or oral testimony, I do not believe there is any shortcut for the painful and slow job of working through the witness's testimony with the witness to make sure that the story that is being told is a story that the witness is prepared and willing truthfully to tell.

In this process the expert-witness requires special care. The distinguished professor of medicine or economics cannot address the finder of fact as he would lecture to his graduate students. He has first to teach counsel what counsel needs to know about his field, and then, usually, counsel has to help him present the matter in terms and in an order that can be clearly and quickly understood by the non-expert finder of fact.

Whether expert or factual witnesses are involved, none of this is a matter of memorizing lines. Some witnesses attempt to do that. Maybe some lawyers encourage them to do it. Memorized lines are a recipe for disaster. The script[Page59:] never works out as planned. The tribunal asks you to proceed in some unexpected order or intervenes with some unexpected question and the witness whose only hold on his testimony is a memorized text is lost at sea. Even if the witness survives questioning by the tribunal, the skilled cross-examiner takes the witness back to his prepared lines, and when they come out exactly the same way the second time and perhaps the third time, they look plainly disingenuous.

The world being an imperfect place, it is not unusual for counsel to come across unhelpful facts during the course of this process. Counsel then has to decide whether to bring them out on direct and thereby, hopefully, defuse them, or leave them to his adversary to bring them out on cross, with maximum dramatic effect. There is seldom an easy answer to this problem. It calls for judgement. But if you believe that the credibility of the witness is as important as the substance of his testimony, then you will frequently come to the conclusion that to bring out the harmful fact on direct is the lesser of evils and may have a usefully disarming effect. Conversely, it is usually a mistake to proceed on the assumption that the unhappy fact will not emerge on cross.

Sometimes, of course, you learn during witness preparation something that leads you to change course altogether. You find, for example, that your eminent and expensive expert economist wrote a learned article expressing a view diametrically opposed to what he is now saying. You may well decide that his genial explanation that "that was written a long time ago, and I have grown older and wiser" will not dissuade the finder of fact from concluding that the expert, on whose awesome authority you hoped to rest, is a mere opportunist. In such a case it is usually best to find another expert.

And sometimes you find that a fact witness is mistaken in his recollection of the course of events. He has placed someone at a meeting who could not have been there. Or omitted from the meeting someone who was there. He has gotten the sequence of events jumbled. He has assumed that something was done that didn't get done. Here the lawyer must do the best he can to help get the witness straightened out. He must show the witness the relevant minutes or correspondence or whatever else may help. Of course, the witness can only testify on the basis of his own knowledge and memory, but the lawyer should do his best to test the accuracy of that memory and forestall demonstrably mistaken testimony. If the lawyer fails to help, he leaves the[Page60:] witness needlessly exposed to damaging cross-examination, or even charges of perjury, and, not least, he himself may violate the rules of professional ethics under which a lawyer may not knowingly "offer evidence that the lawyer knows to be false." 11

When the scope, substance and style of direct examination have been worked out, attention turns to the preparation for cross-examination. The principle object of cross-examination is to damage the witness's credibility, to show that he is biased, has faulty memory, is given to exaggeration, is ignorant of what he claims to know, or that he knows facts or has made statements inconsistent with his direct testimony. Notwithstanding the witness-stand confessions that are the standard fare of courtroom dramas on television, in real life it is rare that a witness can be brought to repudiate his direct testimony altogether. But damage to credibility is not so rare and can be very serious. As I have indicated, the witness's credibility may be as important as - or perhaps more important than - the substance of his testimony. Consciously or unconsciously, the finder of fact is very likely to draw a negative inference not only about the witness who has been shown to be untrustworthy, but also about the lawyer who called him in the first place and about the party on whose behalf he was called. This consideration will have heavily influenced the preparation for direct examination, but it requires special attention and care in the preparation for cross.

There is a long litany of things that one normally tells a witness at this point. He must be told to listen carefully to the question asked, be sure he understands it, and have it repeated or explained if he doesn't understand it. His answer must be based on his own knowledge and his own memory. If his memory is uncertain, he should indicate his degree of uncertainty. His answer must not be based on speculation, guesses, or assumptions. Unless he is an expert-witness, he should not answer hypothetical questions or offer his opinions. He is entitled to explain his answer. He need not be confined to a yes or no. He should, as a rule, only respond to the question put and not volunteer what has not been asked for.

All this is a little like giving someone a manual on how to ride a bicycle. It is no substitute for practical experience. The critical element of preparing a witness is to stage a moot cross-examination, making it as realistic as possible. Ideally, the lawyer in charge of the direct examination will ask another lawyer to[Page61:] prepare and conduct a very thorough moot cross-examination. Having another lawyer do this adds to the realism of the exercise, leaves lead counsel free to play the role he will play at the evidentiary hearing, and helps lead counsel preserve a cordial relationship with the witness notwithstanding the roughness with which the moot cross-examination may be conducted. Most important, this leaves lead counsel free to watch how his witness bears up under cross and free to interject advice when he sees difficulty.

If this process is carried out with real thoroughness, one hopes the witness will have been confronted with every possible difficulty he should experience at the hearing. He will have been confronted with every document with which his testimony may be challenged. Every prior statement that could be thought to be inconsistent with his testimony will be thrown at him. Potential problems that could be forestalled by appropriate inquiry during direct will be folded into the plan for direct examination. Ideally, the witness will be immunized against surprise at the hearing. He will also, if necessary, become more circumspect in answering questions. He will have learned the dangers of exaggeration, of inappropriate enthusiasm or untimely jest. If all goes well, after the hearing the witness will tell you that the moot cross-examination was vastly more challenging than the real thing.

Some lawyers have taken to videotaping the moot cross and then replaying all or parts of it so that the witness can see for himself how he looks and sounds. I do not do this because I think it deflects attention from a sharp focus on the questions and answers and because it tends to make witnesses more nervous and self-conscious. The witness must emerge from preparation with a realistic sense of self-confidence and a sense that he can cope with the ordeal ahead.

As one concludes this long journey with the witness one will say a few words about where and when he is to appear, what if anything he is to bring with him, the need for a good night's sleep beforehand, what to wear and so on.

I have no doubt that the process I have been describing can be abused. I suppose there are lawyers willing to foreswear their professional obligations and to advise witnesses to give false testimony, or subtlety prompt them to do so, or wink at what they know to be false. The lawyer who does so violates the undertakings he gave when he was admitted to his profession and very likely does grave harm to his client into the bargain. In all events, the potential for[Page62:] abuse is not unique to this aspect of the lawyer's work. Lawyers have, on occasion, been found to suppress documents they were called upon to produce or, indeed, to alter or forge documents to be offered in evidence. Lawyers have been known to embezzle clients' funds. But then too, I suppose there may be corrupt finders of fact or, more likely, lazy or biased finders of fact. At least when it comes to the preparation of witnesses, the threat of exposure by skilful cross-examination stands as a great deterrent to falsification.

Of this I am sure: In a system that regards the oral examination of witnesses as central to the process of finding disputed facts, the preparation of witnesses for their vital role is not only indispensable but results in a vast increase in the truth-content of the testimony and greatly facilitates the work of the fact-finder. [Page63:]

1
"Horses-hedding" is defined as "the instruction of a witness favorable to one's case (esp. a client) about the proper method of responding to questions while giving testimony". Blacks Law Dictionary (7th ed. 1999).

2
See Hans van Houtte, "Counsel-Witness Relations and Professional Misconduct in Civil Law Systems", Arbitration International, Vol. 14, No. 4 (2003).

3
American Law Institute, Restatement of the Law: The Law Governing Lawyers (2000), § 116(1) and Comment (a) and (b). "Under litigation practice, uniformly followed in the United States, a lawyer might interview prospective witnesses prior to their testifying. . . As a practical matter, rules requiring inquiry to support factual allegations in a complaint or other document. . . may require a lawyer to interview witnesses to gain the necessary factual foundation. Competent preparation for trial. . . might also require pre-testimonial interviews with witnesses." Id. at Comment (b).

4
Federal Rules of Civil Procedure, Rule 11(b).

5
See, e.g., New York Code of Professional Responsibility, DR 7-104.

6
See, e.g., New York Code of Professional Responsibility, DR 5-107B, DR 5-109.

7
See, e.g., Federal Rules of Evidence, Rule 612.

8
See, American Law Institute, Restatement of the Law: The Law Governing Lawyers §116, Comment b.

9
See, e.g., Federal Rules of Evidence, Rule 611(c).

10
Walter Barthold, "Direct and Cross-examination", in Federal Civil Practice (G.M. Vairo, ed.) (N.Y.S. Bar Association, 1989), pp. 644-45.

11
ABA Model Rules of Professional Conduct, Rule 3.3(a)(4).